Radhika is an investment banker who makes a lot of money and has an opinion on everything. She has had two boyfriends in the past, is about to get married to her (presumably) third boyfriend and believes she is not too likeable. Like Radhika, Aliya is a modern, working woman who has to choose between three men at a critical juncture in her life.
Radhika is the One Indian Girl at the centre of bestselling author Chetan Bhagat’s book, while Aliya is the brainchild of Anvita Bajpai, a little-known author from Bangalore. The lives of Radhika and Aliya are set to be dissected in a copyright infringement suit at the City Civil Court in Bangalore, where Bajpai has obtained a temporary injunction restraining Bhagat’s publishers from selling copies of his book.
Expression of thought
Let’s say you’re up late at night thinking about an idea for a new book. You finally settle on writing about a boy who learns that he is the son of two extremely powerful wizards and possesses unique magical powers of his own. Much to your chagrin, you discover the very next day that a book with the exact same premise has already been written by someone named JK Rowling. Can you still write the book?
One of the first things a student of intellectual property law is taught is that copyright is not concerned with protecting original ideas, but with the expression of thought springing from such ideas, and, in the case of a literary work, with the expression of such thought in print or writing. JK Rowling cannot claim proprietary ownership in the idea of a boy wizard with magical powers. What she can claim ownership over is the manner in which she has expressed this idea in the seven Harry Potter books.
So the answer to the question posed earlier is that you can write the book, provided it qualifies as an original literary work, failing which you will be guilty of copyright infringement.
Original literary work
Fortunately for Bhagat and Bajpai, the Supreme Court has ruled that it is not necessary that the work created should have some literary merit. The courts can only determine whether the skill, labour and capital actually employed in creating an original piece of work is not trivial or negligible. Both Bajpai and Bhagat’s books meet this low threshold and qualify for copyright protection.
Aliya is the protagonist of the short story “Drawing Parallels” written by Bajpai and published in 2014, a couple of years before Bhagat’s book One Indian Girl. Under Sections 13 and 14 of the Copyright Act, Bajpai has copyright in her book and she or her publishers alone have the right to reproduce the book for sale. Bhagat and his publishers have similar rights in their book, provided that One Indian Girl is an original literary work.
An original literary work is any work that is not a copy. A copy has been defined by the Supreme Court as something “which comes so near to the original as to give to every person seeing it the idea created by the original”. The Court went on to hold that it is not necessary that the infringing copy should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.
The Civil Court in Bangalore will apply this basic test in adjudicating the copyright dispute between Bajpai and Bhagat.
Evidence of copying
According to a leading treatise on copyright law, when two authors portray in literary form the same occurrence, involving people reacting to the same emotions under the influence of an environment constructed of the same materials, similarities in incidental details peculiar to the environment or setting are inevitable. That being said, unless they are accompanied by similarities in the dramatic development of the plot or in the lines or actions of the principal characters, they do not constitute evidence of copying.
What this means is that it is simply not enough for Bajpai to assert that Aliya, like Radhika, is a modern working woman who is a feminist. It is also not enough for Bajpai to claim that like Aliya, Radhika is involved with three men or, in the rather colourful language used by the District Judge, both women are “adventurously deviant”, whatever that means. At the very least, Bajpai will have to prove what she has claimed in various interviews, that Bhagat’s book “has an emotional flow” and plot development which is very similar to her short story.
In discharging this burden of proof, Bajpai cannot simply rely on individual parts of her story that are similar to Bhagat’s. The fact that ex-boyfriends were present at the weddings of both female protagonists will not be sufficient to prove copying. She also points to the fact that both stories are narrated from the perspective of the female protagonist who has a constant dialogue with herself and involves flashbacks – this is hardly an uncommon storytelling technique. The fact that both stories end at wonders of the world, Aliya’s at the Taj Mahal and Radhika’s at Machu Picchu, in and of itself is unlikely to prove copying.
In order to prove that Bhagat has committed copyright infringement, Bajpai will have to demonstrate that One Indian Girl is told by grouping and representing important incidents in the same particular sequence as in her story. If she cannot do so, the Court is likely to conclude that the similarities are too trivial and unimportant to amount to a substantial appropriation of Bajpai’s story by Bhagat.
If she is able to prove copying, Bhagat’s claim that he has never met Bajpai or read any of her works will not be a defence to copyright infringement. One can be held liable for plagiarism which is unintentional or done unconsciously, with Bajpai being entitled to a permanent injunction preventing further sales of Bhagat’s books and compensatory damages for infringement.
In a shoddy order that fails to clearly disclose the reasons for its decision, the District Judge has granted a temporary injunction in Bajpai’s favour, restraining the sales of the book. One can only surmise that the court has concluded, having read both the books, that Bajpai has made out a prima facie case for infringement as this is one of the key requirements for the grant of a temporary injunction. Another requirement is that Bajpai would suffer irreparable injury if the injunction is not granted.
This requirement is clearly not satisfied, as an irreparable injury is defined as one which cannot adequately be compensated by damages. If Bajpai is in fact successful in proving that Bhagat copied her work, damages can easily be calculated. The final requirement is to weigh up whether the plaintiff or the defendant is likely to be more inconvenienced by the grant of the temporary injunction. Clearly Bhagat is likely to suffer the greater hardship, as his publishers will now have to recall thousands of copies of the book and halt sales.
Bhagat’s lawyers will likely approach the Karnataka High Court – if they haven’t done so already – seeking to appeal the temporary injunction that has been granted by the District Judge, especially considering it was obtained ex-parte i.e. without hearing Bhagat’s lawyers. Once the matter is before the High Court, Bhagat’s lawyers are likely to argue that a prima facie case has not been made out and the injunction has been granted on insufficient grounds. Bhagat’s lawyers are also likely to claim compensation under Section 95 of the Code of Civil Procedure for the reputational damage caused to him by Bajpai’s actions in obtaining the temporary injunction.
Having read excerpts from both books, one can safely say that Bajpai has her task cut out in proving plagiarism on Bhagat’s part. The Supreme Court has emphatically stated that where there is no textual copying and there are differences in literary style, similarities of the same general nature in a narrative of a long, complicated search for something – in the case of the two female protagonists, it is a search for their true “inner self” – does not indicate infringement.
Bhagat’s inimitable literary style, in addition to making him India’s bestselling English language novelist and earning him a place on the Delhi University syllabus, will probably ensure that he is cleared of plagiarism.
Abhishek Sudhir is the founder of Sudhir Law Review, a legal education website.